Arizona's 'birther' bill faces legal challenges

by Alia Beard Rau - Apr. 16, 2011 12:00 AMThe Arizona Republic

If signed into law, a measure requiring presidential candidates to provide documents proving they are natural-born citizens in order to appear on the Arizona ballot would likely face lawsuits challenging the bill's constitutionality.

Local and national experts say the state has no authority to add the condition of providing documents to the federal presidential requirements already laid out in the Constitution.

Paul Bender, an Arizona State University constitutional-law professor, said only Congress can determine whether a presidential candidate is eligible for office.

"States have no authority whatsoever with regard to presidential elections," he said.

Even the Republican secretary of state, who would be responsible for overseeing the law, has some questions about its legality.

However, bill supporters believe they're on solid ground, saying the measure requires no more than does federal law.

The Legislature has tried to pass a so-called birther bill for three years. Supporters attribute this latest effort's success to some compromise, strong Republican support, recent media coverage and "tea party" influence.

The bill is awaiting Gov. Jan Brewer's signature. If she signs it, the state will become the first in the nation to pass such a measure.

Although the governor won't comment on the measure, the bill's sponsor - Rep. Carl Seel, R-Phoenix - said he's confident she'll approve it because of the strong Republican support it received in the Legislature. Brewer has until Thursday to decide whether she'll sign the bill into law, veto it or do nothing and allow it to become law.

Bill's history

The "birther" movement stems from theories about whether President Barack Obama meets the federal requirement that presidents be natural-born citizens. Hawaii officials have repeatedly confirmed Obama's birth there, but some continue to believe he was born in Kenya, his father's homeland.

Numerous lawsuits have been filed challenging Obama's qualifications. None has been successful. Lawmakers in several states have unsuccessfully proposed legislation to require that candidates show proof of citizenship.

Senate President Russell Pearce, R-Mesa, proposed a bill in June 2009 to ask voters to require presidential candidates to provide proof of citizenship. It never got a hearing.

Last year, Rep. Judy Burges, R-Skull Valley, twice proposed a similar bill, although it would not have required voter approval. One never got a hearing, the other was halted right before it got a final vote in the Senate.

Gould's bill specifically required a "long form" birth certificate, which includes the date and place of birth, names of the hospital and attending physician and signatures of witnesses. His bill also required candidates to provide sworn statements attesting that both their parents were American citizens. The bill failed after lawmakers questioned the definition of "natural-born citizenship."

Although the constitutional requirement has generally been held to mean people who have been citizens since birth, there is no established definition in either federal law or court rulings.

When the bills failed to gain traction this year, Seel tacked his measure on to an unrelated education bill that had already passed the House. His version expanded the requirement to apply to all legislative, state and national candidates in Arizona and included no requirement that candidates' parents be citizens.

House Speaker Kirk Adams, R-Mesa, later said he supported it because it applied to all candidates equally. It also extended the acceptable documents required to verify proof of citizenship.

"It was a unanimous vote from all Republicans in the House and all those present in the Senate," Seel said.

Final version

The final version of House Bill 2177 requires candidates for local, legislative, statewide or national office to provide the Secretary of State's Office with documents proving they meet the qualifications for the office sought. Those documents could vary depending on the office.

Presidential candidates must have their national political party send the secretary of state an affidavit from the candidate saying that they are natural-born citizens, have lived in the U.S. for 14 years and are at least 35 years old. The party must include documents proving that information, preferably a long-form birth certificate. If that document is not available, the candidate can provide at least two of the following: early baptismal or circumcision certificate, hospital birth record, postpartum medical record signed by the person who delivered the child, or an early census record.

Seel said the U.S. Department of Defense accepts these documents in lieu of a long-form birth certificate.

The bill gives the secretary of state the authority to determine whether the provided documents are sufficient. If the candidate fails to provide the documents or the documents are determined to be insufficient, the candidate will not be put on the ballot.

It also allows any Arizona resident to file a lawsuit if he or she doesn't believe the bill is being correctly enforced.

'Tea party' influence

Seel credits a variety of people for the bill's success this year, including a recent media blitz by businessman and possible presidential candidate Donald Trump challenging Obama's citizenship. Seel traveled to New York last week to meet with Trump.

But Seel said various state tea-party groups had the largest influence on the bill's passage.

"Twenty-four hours before the vote, there were a few Republicans who weren't sure they were going to vote for it," he said. "Tea-party members got out and called the legislators and encouraged them to vote for it."

Kelly Townsend, co-founder of the Greater Phoenix Tea Party, was at the House at about 10 p.m. Thursday for the final vote. She has been following the issue for two years and said she asked Seel for help when Burges' original bill failed. She said tea-party members have been strategizing daily to make sure it got passed.

Although lawmakers supporting the measure have been quick to say it's about providing voters assurance that all candidates meet qualifications - and not about Obama - Townsend said Obama brought the issue to the forefront.

"There is a valid question concerning his eligibility," she said. "I'm not saying he's not, but it's up to him to show us he is."

Townsend said tea-party members are calling the governor to encourage her to sign the bill.

Legal questions

Legal experts say bill supporters may have awhile to wait before they can celebrate. Federal lawsuits are expected to challenge the bill's constitutionality.

Rick Hasen, an election-law specialist and visiting professor at University of California-Irvine School of Law, said he believes the bill's constitutionality is uncertain because there is a conflict between two different parts of the U.S. Constitution.

One part gives state legislatures broad powers to set rules for their presidential electors who, under the Electoral College system, actually cast the official votes for president.

"That gives the Legislature power to make the rules," he said. "A legislature could say it's not even going to hold an election for president and could pick who it is going to support."

Under that portion of the Constitution, Hasen said, Arizona could be within its power.

But, he said, the problem may be the part of the Constitution that lists the set qualifications for president. He said a U.S. Supreme Court ruling said states don't have a right to add to those presidential qualifications.

"If Arizona passed a law saying the president has to be 50, that would be unconstitutional," he said. "So, the question is whether this is simply implementing the constitutional provision or whether it creates additional qualifications."

Seel disagrees.

"This is 'we, the Legislature' telling 'you, the executive' to enforce the U.S. Constitution in a way that's consistent with U.S. Supreme Court cases," he said. "I believe it will withstand court scrutiny."

Bender said the bill is unconstitutional: "You can't have 50 states using 50 different standards to determine whether the presidential standards are met."

Political issues

The Secretary of State's Office says if the bill becomes law, it will implement it in a fair and equitable manner. But spokesman Matt Roberts said Secretary of State Ken Bennett has some concerns, including how to handle independent candidates.

The bill requires that the national party submit the documents. Independent candidates have no party.

Also, the secretary currently has no responsibility to verify candidate affidavits stating they comply with qualifications. This bill would change that.

"We'll make the determination as to whether candidates are granted ballot access," Roberts said. "Is it wise for us to have a partisan, non-judicial officer determine ballot access?"

Jennifer Johnson, spokeswoman for the Arizona Democratic Party, said officials will contact the Democratic National Committee to discuss the options, which could include a lawsuit, if the bill becomes law.

She said the bill is a solution in search of a problem. She could recall no instance in which an Arizona candidate's citizenship was in question. "On the face, this certainly seems to be unconstitutional," she said. "But, beyond that, it's irrelevant and wasteful."

Thayer Verschoor, spokesman for the Arizona Republican Party, said it had not yet taken a stance on the issue.